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  1. added 2019-02-04
    Reformas al Estado Social en América Latina: un análisis desde el desarrollo en el nuevo constitucionalismo latinoamericano.Juan Daniel Giraldo Hincapié, Daniel Fernando Ramírez Martínez & Brigit Joaly Zapata Muñoz - 2017 - Revista Justicia y Derecho 5:68-102.
    Abstract: The New Latin-American Constitutionalism (NCL) is a new theory represented by the last-two decades constitutions of Colombia, Venezuela, Ecuador, and Bolivia. These constitutional texts share special characteristics in their originality and their comprehension of the features of their societies, which have originated new mechanism and institutions in constitutional theory, in order to advance the development of their nations. This paper analyzes the aspects of democracy, economic regulation, and peace building, as fundamental elements of NCL, in order to prove the (...)
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  2. added 2018-10-24
    Market Anarchism as Constitutionalism.Roderick T. Long - 2008 - In Roderick T. Long & Tibor R. Machan (eds.), Anarchism/Minarchism: Is a Government Part of a Free Country? Ashgate. pp. 133-154.
    A legal system is any institution or set of institutions in a given society that provides dispute resolution in a systematic and reasonably predictable way. it does so through the exercise of three functions: the judicial, the legislative, and the executive. The judicial function, the adjudication of disputes, is the core of any legal system; the other two are ancillary to this. The legislative function is to determine the rules that will govern the process of adjudication (this function may be (...)
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  3. added 2018-08-22
    Review of Sovereignty’s Promise: The State as Fiduciary by Evan Fox-Decent. [REVIEW]Matthew Lister - 2012 - Ethics 123 (1):150-4.
    In Sovereignty’s Promise: The State as Fiduciary, Evan Fox-Decent uses the idea of fiduciary relationships to explain the legitimate exercise of governmental authority. He makes use of the idea of the state as a fiduciary for the people to ground an account of the duty to obey the law, to explain the proper relationships between colonial (or “settler”) societies and aboriginal populations, the role of agency discretion and judicial review in the administrative state, the rule of law, the relationship between (...)
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  4. added 2018-05-30
    Founding Acts: Constitutional Origins in a Democratic Age by Serdar Tekin. [REVIEW]Christopher Zurn - 2018 - The Review of Politics 80 (1):164-167.
  5. added 2018-05-10
    The Transformation of Meaning: Legal Discourse and Canadian Internment Camps.William E. Conklin - 1996 - International Journal for the Semiotics of Law - Revue Internationale de Sémiotique Juridique 9 (3):227-256.
    This Paper addresses the question as to how legal officials of the Canadian state pictured “persons of the Japanese race” in their internment before, during and after their internment. The legislative and judicial internment and exile of Canadian citizens “of the Japanese race” reads as if the internment and exile is ‘natural’, inevitable, and reasonable and that the judicial decisions posed no choice for the judiciary except to support the internment and exile. The role of the judiciary was held out (...)
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  6. added 2018-05-04
    Normativism and Realism Within Contemporary Democratic Constitutionalism.Valerio Fabbrizi - 2018 - Philosophy and Social Criticism 44 (6):1-21.
    The renewed interest on political realism can offer a new reading of the traditional dichotomy between normative and realist conception of constitutionalism. The purpose of this article is to analyse this renewed discussion, especially by focusing on the relationship between “political realism” and “political constitutionalism,” in the light of some theorists and authors—such as Richard Bellamy and Jeremy Waldron. After a brief introduction in which political realism will be discussed, especially through Bernard Williams’ reinterpretation, the article proposes a rereading of (...)
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  7. added 2018-04-14
    The Debate on Constitutional Courts and Their Authority Between Legal and Political Constitutionalism.Valerio Fabbrizi - 2016 - Philosophica Critica 2 (2):47-70.
    The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (...)
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  8. added 2018-04-09
    Introduction: Symposium on Paul Gowder, the Rule of Law in the Real World.Matthew J. Lister - 2018 - St. Louis University Law Journal 62 (2):287-91.
    This is a short introduction to a book symposium on Paul Gowder's recent book, _The Rule of Law in thee Real World_ (Cambridge University Press, 2016). The book symposium will appear in the St. Luis University Law Journal, 62 St. Louis U. L.J., -- (2018), with commentaries on Gowder's book by colleen Murphy, Robin West, Chad Flanders, and Matthew Lister, along with replies by Paul Gowder.
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  9. added 2018-04-09
    Social Democracy and the Limits of Rights Constitutionalism.Gavin Anderson - 2004 - Canadian Journal of Law and Jurisprudence 17 (1):31-59.
    Can rights constitutionalism operate as a social democratic restraint on private power? How should we assess this? Following renewed interest in social democratic legal theory, some propose developing more egalitarian forms of rights constitutionalism as a counterweight to overweening private power in the global economy. Such strategies follow a normative methodology, associated with liberal accounts of legality which emphasize the autonomy of law as an external means of social change. This can be contrasted with traditional social democratic accounts of law (...)
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  10. added 2018-03-14
    Philosophical Foundations of Judicial Review.Cristina Lafont - 2016 - In David Dyzenhaus (ed.), Philosophical Foundations of Constitutional Law. Oxford: Oxford University Press. pp. 265-282.
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  11. added 2018-02-17
    A Transformative Theory of Religious Freedom: Promoting the Reasons for Rights.Corey Brettschneider - 2010 - Political Theory 38 (2):187-213.
    Religious freedom is often thought to protect, not only religious practices, but also the underlying religious beliefs of citizens. But what should be said about religious beliefs that oppose religious freedom itself or that deny the concept of equal citizenship? The author argues here that such beliefs, while protected against coercive sanction, are rightly subject to attempts at transformation by the state in its expressive capacities. Transformation is entailed by a commitment to publicizing the reasons and principles that justify the (...)
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  12. added 2017-11-13
    The Bush Tribunals and the Specter of Dictatorship.Andrew Arato - 2002 - Constellations 9 (4):457-476.
  13. added 2017-10-27
    Is Hyperpluralism Compatible with Dualist Constitutionalism? On Alessandro Ferrara's Conception of Multivariate Democratic Polity.Italo Testa - 2017 - Jura Gentium (1):80-95.
    In this essay I first set out the advantages the " multivariate democratic polity " framework proposed by Ferrara offers in comparison to other more consensus-based notions of democratic legitimacy. Secondly, I highlight some ambiguities concerning the meta-theoretical status of this frame, since it is not clear whether it consists of an adaptive realistic description, or otherwise is a normative argument. Thirdly, I cast some doubts on the compatibility between the multivariate frame and the " dualist conception of democratic constitutionalism (...)
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  14. added 2017-09-03
    The Rule of Law in the Real World.Paul Gowder - 2016 - New York, USA: Cambridge University Press.
    In The Rule of Law in the Real World, Paul Gowder defends a new conception of the rule of law as the coordinated control of power and demonstrates that the rule of law, thus understood, creates and preserves social equality in a state. In a highly engaging, interdisciplinary text that moves seamlessly from theory to reality, using examples ranging from Ancient Greece through the present, Gowder sheds light on how societies have achieved the rule of law, how they have sustained (...)
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  15. added 2017-01-18
    Assaggi di Metaetica Due.Paolo Comanducci - 1998
    Il volume si propone di sondare, a livelli diversi di profon­dità, alcuni problemiaperti dell’etica e della metaetica, intendendo tali termini in un senso assai lato. ‘Etica’ è infatti usato per riferirsi all’intero dominio del diritto, della politica e della mo­rale; ‘metaetica’ per riferirsi a qualunque discorso che verta sull’etica. Nella prima parte sono analizzati, a livello metaetico, alcuni concetti-chiave in ambito pratico: tra gli altri, quelli di tolleranza, di uguaglianza e di diritti umani. Nella seconda parte vengono affrontati, a livello (...)
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  16. added 2017-01-05
    Formas de constitucionalismo: un análisis metateórico.Paolo Comanducci - 2002 - Isonomía. Revista de Teoría y Filosofía Del Derecho 16:89-112.
    El ensayo analiza tres tipos de neoconstitucionalismos, teórico, ideológico y metodológico, y sus contrastes con el positivismo jurídico. Se presenta también una apreciación crítica del neoconstitucionalismo.
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  17. added 2017-01-03
    In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law.Trs Allan - 2009 - Canadian Journal of Law and Jurisprudence 22 (1):187-203.
    Brudner argues that liberal constitutionalism, or the rule of Law, requires the adoption of a written constitution, regulating the respective powers of court and legislature. In his analysis, the common law constitution is associated with a libertarian paradigm that gives way, in part, to an egalitarian one embodied in a sovereign constitutional text. I argue, to the contrary, that the preservation of the rule of Law, including the protection of liberal rights, does not require a codified constitution, but demands only (...)
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  18. added 2016-12-08
    Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law.Jacob Weinrib - 2016 - Cambridge University Press.
    In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (...)
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  19. added 2016-12-08
    Democracy on the Lam: Crisis, Constitutionalism and Extra-Legality.Jennet Kirkpatrick - 2012 - Contemporary Political Theory 11 (3):264-284.
  20. added 2016-12-08
    Political Constitutionalism.Iseult Honohan - 2009 - Contemporary Political Theory 8 (3):371-374.
  21. added 2016-12-08
    Construing Disagreement.Gary Shiffman - 2002 - Political Theory 30 (2):175-203.
    The danger of disturbing the public tranquillity by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. —James Madison, Federalist 49At a time like this, scorching irony, not convincing argument, is needed.—Frederick Douglass, “What to the Slave is the 4th of July?”.
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  22. added 2016-12-08
    Liberal Constitutionalism as Ideology.Mark Warren - 1989 - Political Theory 17 (4):511-534.
  23. added 2016-12-08
    Locke and the Rejection of the Ancient Constitution.David Resnick - 1984 - Political Theory 12 (1):97-114.
  24. added 2016-12-08
    The Federal Convention and the Formation of the Union of the American States. [REVIEW]J. B. R. - 1959 - Review of Metaphysics 12 (4):669-669.
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  25. added 2016-08-29
    Towards a Concept of Human Rights: Inside and Outside Genealogy.Veronica Rodriguez-Blanco - 2012 - Archiv für Rechts- Und Sozialphilosophie 98 (3):346-359.
    Raymond Geuss asserts that there are fragmented views on what human rights are and that there is no unifying principle underlying such notion. I think that this view has its merits. It conveys the particularity of our perspectives, attitudes, desires and self-understandings. It rejects abstractness and is committed to a thick, perspectivist, historical understanding of personhood. To understand who we are, is to understand how we arrive at being who we are. By contrast, the notion of human rights deploys abstractness, (...)
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  26. added 2016-07-14
    What Are Constitutions, and What Should They Do?Larry Alexander - 2011 - Social Philosophy and Policy 28 (1):1-24.
    A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...)
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  27. added 2016-04-27
    Animal Rights and the Interpretation of the South African Constitution.Thaddeus Metz - 2012 - In David Bilchitz & Stu Woolman (eds.), Is This Seat Taken? Conversations at the Bar, the Bench and the Academy. Pretoria University Law Press. pp. 209-219.
    In this chapter, a reprinted article from Southern African Public Law (2010), I argue that, even supposing substantive principles of distributive justice entail that animals warrant constitutional protection, there are other, potentially weightier forms of injustice that would probably be done by interpreting a Bill of Rights as implicitly applying to animals, namely, formal injustice and compensatory injustice. Formal injustice would result from such a reading of the Constitution in that the state would fail to speak with one voice upon (...)
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  28. added 2015-09-03
    Review of Lee (2011) From House of Lords to Supreme Court. [REVIEW]H. G. Callaway - 2015 - Law and Politics Book Review 25 (2):22-26.
    The papers collected in the present volume arose from a 2009 seminar organized by the Society of Legal Scholars and the University of Birmingham, and convened at the Law Society’s Hall in Bristol, England. The seminar, “Judges and Jurists: Reflections on the House of Lords,” commemorated the centenary of the Society; and it chiefly focused on the transition from the House of Lords, as the U.K.’s court of final appeals, to the prospects of the newly instituted United Kingdom Supreme Court. (...)
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  29. added 2015-09-02
    Justifications, Powers, and Authority.Malcolm Thorburn - 2008 - Yale Law Journal 117:1070.
    Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (...)
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  30. added 2014-12-20
    The Normativity of Linguistic Originalism: A Speech Act Analysis.John Danaher - 2015 - Law and Philosophy 34 (4):397-431.
    The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution (...)
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  31. added 2014-06-16
    Review Article: Come o Liberals, Try Harder … Glyn Morgan The Idea of a European Superstate: Public Justification and European Integration. Princeton, Princeton University Press, 2005. Jan-Werner Müller Constitutional Patriotism. Princeton, Princeton University Press, 2007. [REVIEW]Justine Lacroix - 2010 - European Journal of Political Theory 9 (2):227-234.
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  32. added 2014-04-21
    Constituent Power Beyond the State: An Emerging Debate in International Political Theory.Markus Patberg - 2013 - Millennium - Journal of International Studies 42 (1):224-238.
  33. added 2014-03-27
    Sprachen der Politischen Verfassung Bei Thukydides.Hartmut Leppin aM - 2011 - In Ernst Baltrusch & Christian Wendt (eds.), Ein Besitz für Immer?: Geschichte, Polis, Und Völkerrecht Bei Thukydides. Nomos.
  34. added 2014-03-20
    The Constitution in the Process of Denationalization.Dieter Grimm - 2005 - Constellations 12 (4):447-463.
  35. added 2014-03-19
    Constitution Making and Institutional Innovation: The European Union and Multisited Federalism.James Bohman - forthcoming - European Journal of Political Theory.
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  36. added 2014-03-19
    The European Constitution is Dead, Long Live European Constitutionalism.Richard Bellamy - 2006 - Constellations 13 (2):181-189.
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  37. added 2014-03-19
    The European Constitution Project After the Referenda.Grainne De Burca - 2006 - Constellations 13 (2):205-217.
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  38. added 2014-03-17
    Green Constitutionalism: The Constitutional Protection of Future Generations.Kristian Skagen Ekeli - 2007 - Ratio Juris 20 (3):378-401.
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  39. added 2014-03-12
    A Defence of Jury Nullification.Thom Brooks - 2004 - Res Publica 10 (4):401-423.
    In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss (...)
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  40. added 2014-03-07
    Cancellation of Early Elections by the Constitutional Court of the Czech Republic: Beginning of a New Concept of “Protection of Constitutionality”.Jan Kudrna - 2010 - Jurisprudencija: Mokslo darbu žurnalas 122 (4):43-70.
    The ruling of the Constitutional Court of 10 September 2009 which repealed the proclaimed early elections to the Chamber of Deputies because of their alleged unconstitutionality fully manifests unjustifiability of the interference by the Constitutional Court of the Czech Republic. The decision directly interfered with the process of democratic re-establishment of the Chamber of Deputies. At the same time, the Court´s intervention was only made possible by violating a number of constitutionally prescribed rules. Finally, the respective ruling could not be (...)
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  41. added 2014-02-28
    Counter-Hegemonic Constitutionalism: The Case of Colombia.Nicolás Figueroa García-Herreros - 2012 - Constellations 19 (2):235-247.
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  42. added 2014-02-19
    Strange Multiplicity: Constitutionalism in an Age of Diversity.James Tully - 1995 - Cambridge University Press.
    Constitutionalism in an Age of Diversity James Tully. these ambassadors from Haida Gwaii conciliate the goods which appear irreconcilable to us? To discover the answer, and learn our way around on this strange common ground, we need to ...
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  43. added 2014-01-29
    Review Essay: Dance of the Seven Constitutional Veils: Constitutional Design as Political Choice and Craft: Mechanisms of Democracy: Institutional Design Writ Small, by Adrian Vermeule. Oxford, UK: Oxford University Press, 2007. 272 Pp. $50.00 . Law and the Limits of Reason, by Adrian Vermeule. Oxford, UK: Oxford University Press, 2008. 224 Pp. $49.95. [REVIEW]E. Beaumont - 2010 - Political Theory 38 (2):282-290.
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  44. added 2014-01-20
    Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy.Richard Bellamy - 2007 - Cambridge University Press.
    Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat (...)
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  45. added 2013-09-10
    On Racist Hate Speech and the Scope of a Free Speech Principle.Mary Kate McGowan & Ishani Maitra - 2009 - Canadian Journal of Law and Jurisprudence 23 (2):343-372.
    In this paper, we argue that to properly understand our commitment to a principle of free speech, we must pay attention to what should count as speech for the purposes of such a principle. We defend the view that ‘speech’ here should be a technical term, with something other than its ordinary sense. We then offer a partial characterization of this technical sense. We contrast our view with some influential views about free speech , and show that our view has (...)
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  46. added 2012-11-22
    Constitutionalism and Value Theory.Andras Szigeti - 2010 - In Andras Sajo & Renata Uitz (eds.), Constitutional Topography: Values and Constitutions. ELEVEN INTERNATIONAL PUBLISHING.
    The theory and practice of constitutionalism is tightly interwoven with references and appeals to values. However, these references and appeals frequently remain undertheorized and are seldom connected directly to philosophical theories of value. This chapter outlines some ways in which such connections might be established.
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  47. added 2012-09-13
    Is the Criminal Law (So) Special? Comments on Douglas Husak’s Theory of Criminalization.Re'em Segev - 2010 - Jerusalem Review of Legal Studies 1 (1):3-20.
    This is Re'em Segev's contribution to the symposium on Douglas Husak's book "Overcriminalization.".
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  48. added 2012-06-10
    The Desirability of a Property Clause: Michelman's Defence of Liberalism.Thaddeus Metz - 2013 - Stellenbosch Law Review 24 (2):312-28.
    I address Frank Michelman’s recent attempts to dispel the notion that there are deep tensions between a liberal approach to constitution making and a resolute commitment to fighting poverty, i.e., to holding what he calls ‘social liberalism’. He focuses on the prima facie tension between anti-poverty struggle on the part of government and the existence of a property clause in a constitution, a tension that several commentators in South Africa have contended requires removing that clause from its Constitution. In reply, (...)
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  49. added 2011-12-25
    Review of Alison L. LaCroix Ideological Origins of American Federalism. [REVIEW]H. G. Callaway - 2011 - Law and Politics Book Review 21 (10):619-627.
    Alison L. LaCroix is Assistant Professor of Law at the University of Chicago Law School, where she specializes in legal history, federalism, constitutional law and questions of jurisdiction. She has written a fine, scholarly volume on the intellectual origins of American federalism. LaCroix holds the JD degree (Yale, 1999) and a Ph.D. in history (Harvard, 2007). According to the author, to fully understand the origins of American federalism, we must look beyond the Constitutional Convention of 1787 and range over the (...)
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  50. added 2010-09-23
    Balancing Procedures and Outcomes Within Democratic Theory: Corey Values and Judicial Review.Corey Brettschneider - 2005 - Political Studies 53:423-451.
    Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...)
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